Plaintiffs
challenge the at-large election of judges serving on the
State of Texas's courts of last resort-the Supreme Court
of Texas and Texas Court of Criminal Appeals-on the basis of
vote dilution under Section 2 of the Voting Rights Act, 52
U.S.C. § 10301. D.E. 24. Before the Court is
Defendants' Motion to Dismiss (D.E. 30), challenging
Plaintiffs' standing and whether they have adequately
alleged a Section 2 claim. For the reasons set out below, the
motion is DENIED.

DISCUSSION

Defendants,
the State of Texas; Greg Abbott, in his official capacity as
Governor of Texas; and Carlos Cascos, in his official
capacity as Texas Secretary of State, challenge the
Court's jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), arguing that Plaintiffs do not have
standing to assert their claims. Also, invoking Rule
12(b)(6), Defendants challenge whether Plaintiffs have
properly pled the necessary elements of their Voting Rights
Act claim. Each challenge is addressed in turn.

The
burden of proof is on the party asserting
jurisdiction-Plaintiffs, here. Ramming, 281 F.3d at
161. The elements of Article III standing “are not mere
pleading requirements but rather an indispensable part of the
plaintiff's case [and] each element must be supported . .
. with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus,
at the pleading stage, a complaint must contain general
factual allegations to indicate that standing is plausible.
See id.; Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The Court must assume arguendo the merits of the
legal claim. See Cole v. Gen. Motors Corp., 484 F.3d
717, 723 (5th Cir. 2007) (citing Parker v. District of
Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (in turn
citing Warth v. Seldin, 422 U.S. 490, 501-02
(1975)).

2.
Defendants' Challenges to Standing

To
establish standing, it is well-settled that the plaintiff
must allege the following elements: (1) the plaintiff
suffered an injury in fact, which is concrete or
particularized and actual or imminent; (2) there is a causal
connection between the injury and the conduct complained of;
and (3) it is likely that the injury will be redressed by a
favorable decision. Lujan, 504 U.S. at 560-61.
Defendants contend that Plaintiffs' pleading suffers
defects on each of these elements.

Injury.

Defendants
claim that a single plaintiff's standing cannot be
predicated upon a generalized grievance shared by all or a
large class of citizens. For this proposition, they cite
Warth, supra at 499. However, the Warth
case did not address voting rights or any other injury
necessarily shared by all or a large class of citizens.
Rather, the claimed injury was a zoning ordinance that
excluded certain low income persons from housing. The
Warth plaintiffs did not demonstrate that they had
been excluded from housing. Instead, they claimed that,
because of shared racial or ethnic minority and low income
demographics, they could challenge the ordinance on equal
protection grounds. Because they had not demonstrated that
they were within the class that had actually been injured,
they did not have standing.

If such impairment does produce a legally cognizable injury,
they are among those who have sustained it. They are
asserting ‘a plain, direct and adequate interest in
maintaining the effectiveness of their votes, ' not
merely a claim of ‘the right possessed by every citizen
‘to require that the government be administered
according to law . . . '.' They are entitled to a
hearing and to the District Court's decision on their
claims. ‘The very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury.'

Defendants
further suggest that the individual injury of vote dilution
is not adequately pled unless the Individual Plaintiffs state
a scenario in which their own or their Latino group's
preferred, named, candidate was not elected. However, the
first amended complaint recites a statistical history of
voting for the high courts of Texas and alleges that Latino
candidates and other candidates preferred by the Latino
community have not been elected in numbers proportionate to
the voting class. D.E. 24, pp. 6-8. They have placed the
immediate past history of election outcomes in question and
further development of the issues requires discovery and the
presentation of evidence. The pleading sets out a sufficient
factual basis to defeat a Rule 12 motion.

Cause.

Defendants
also claim that the necessary causal connection cannot be
demonstrated because Plaintiffs cannot rule out the
significance of independent reasons for electoral defeat,
such as party affiliation. Defendants argue that Plaintiffs
have to be able to show that the candidate they voted for did
not prevail and that there were no other forces at work that
might have caused the minority-preferred candidate to lose
the election, citing League of United Latin American
Citizens, Council No. 4434 v. Clements, 999 F.2d 831,
850 (5th Cir. 1993). However, the Clements opinion
discusses alternate causes as revealed through evidence at
trial. The opinion does not support pre-litigating such a
fact issue in a motion to dismiss at the pleading
stage.[1]

Defendants
also cite United States v. Hays, 515 U.S. 737,
745-46 (1995). Likewise, that opinion was based on a fully
developed trial record. The Court wrote, “But appellees
do not live in the district that is the primary focus of
their racial gerrymandering claim, and they have not
otherwise demonstrated that they, personally, have been
subjected to a racial classification. For that reason, we
conclude that appellees lack standing to bring this
lawsuit.” Id. at 739. The relevant point to
glean from this decision, then, is that individuals who do
reside in the district that is the primary focus of their
claim do have standing to complain of vote dilution.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Defendants
also cite Bennett v. Spear, 520 U.S. 154, 167
(1997), as requiring proof that vote dilution was the
exclusive cause of electoral defeat. However, the causation
requirement for standing is that &ldquo;the injury must be
fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third
party not before the court.&rdquo; Id. Allegations
that their vote dilution results from the method of
conducting elections by the governing jurisdiction is
sufficient. Plaintiffs need not expressly exclude other
potential causes of their injury. At the pleading stage, the
Court takes Plaintiffs' allegations as true. If a party
not before the ...

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